United States v. Leon Johnson , 610 F.2d 194 ( 1979 )

FIELD, Senior Circuit Judge:

Leon Johnson, together with his co-defendant, J. Paul Scott, was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and § 2. Johnson and Scott were tried jointly and a third defendant, Donald Anderson, testified against them under a grant of immunity pursuant to a plea bargain. Upon appeal, Johnson contends that Anderson’s response to a question put to him upon cross-examination improperly put Johnson’s character in issue, and that the trial court committed reversible error in denying his motions for a mistrial or severance.

In September of 1978, three masked bandits robbed a branch of the Spartanburg Bank and Trust Co. in Spartanburg, South Carolina. At the trial of Johnson and Scott, Anderson testified that he was one of those three. He identified defendants Johnson and Scott to be the others involved in the robbery. He testified extensively as to the planning and preparation for the robbery and also the events involved in the robbery itself. His story was corroborated by the witnesses to the robbery and by others. Paraphernalia used in the robbery had been found much as Anderson had described. Since the three men wore ski masks, coveralls, and gloves, no identification of Johnson was made by any witness other than Anderson. His testimony, therefore, was of much importance to the government.

Neither Johnson nor Scott testified. During the cross-examination of Anderson, Scott’s counsel asked the following question and received the following response:

Q. All right. Now Mr. Anderson, when you robbed the bank at Taylorsville, Georgia, who was with you?

A. Leon Johnson and Mel vina Satter-field and Charmane Garrett.

Counsel for Johnson immediately moved for a mistrial or, in the alternative, a severance, alleging that the response to the question was too prejudicial to be cured by an instruction to the jury. After a hearing outside the presence of the jury, the trial court denied the motions. The trial court then gave an extensive instruction to the jury, admonishing them to disregard that part of Anderson’s testimony.¹

It is, of course, well settled that only a defendant can put his character into issue in a criminal trial.² Closely akin to that broad concept is the widely accepted rule that evidence of other crimes not charged in the indictment is not admissible as part of the case against the defendant.³ The rule has many exceptions,⁴ but we find it unnecessary to venture into this troublesome area since, in our opinion, the dispositive question on this appeal is whether the district court abused its discretion in denying Johnson’s motions. The basic principle was stated in the landmark case of Throck-morton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 480, 45 L.Ed. 663 (1901):

The general rule is that if evidence which may have been taken in the course of a trial be withdrawn from the consideration of the jury by the direction of the presiding judge, that such direction cures any error which may have been committed by its introduction. * * * But yet there may be instances where such a strong impression has been made upon the minds of the jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission, and in that case the general objection may avail on appeal or writ of error. (Citation omitted)

Whether prejudicial error has been committed must be determined on the basis of the record in its entirety and the result will generally turn on the facts of each case. The record before us discloses that the Government solidly proved its case against Johnson with evidence which was both admissible and convincing, and viewed in the context of the entire trial, the strong curative instruction of the district judge was sufficient to dissipate whatever small amount of prejudice may have been created by the reference to the Georgia robbery.

While we have reversed convictions in cases where evidence of other crimes had been improperly presented,⁵ in those cases the inadmissible evidence was not only prejudicial, but had been purposely introduced by the prosecution. Here, the question was posed by counsel for Johnson’s co-defendant, and neither the question nor the response carried the imprimatur of the Government. Absent such misconduct on the part of the Government counsel, the courts generally have discerned no reversible error where the trial court has acted promptly in sustaining an objection and advising the jury to disregard the testimony. See, United States v. Works, 526 F.2d 940 (5 Cir. 1976); Brown v. United States, 380 F.2d 477 (10 Cir. 1967), cert. den., 390 U.S. 962, 88 S.Ct. 1062, 19 L.Ed.2d 1158 (1967); Atkinson v. United States, 344 F.2d 97 (8 Cir. 1965), cert. den., 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106 (1966).

Since we perceive no abuse of discretion by the district court in denying Johnson’s motions, the judgment of conviction is affirmed.

AFFIRMED.

1 . The court’s instruction to the jury was, in part, as follows:

Mr. Foreman and members of the jury, I want you to listen to me very carefully because this is the most important thing that I have instructed you from a legal standpoint I am about to so do now. * * * But you will recall that Mr. Rion asked this young man who was with you in the commission of the bank robbery in Georgia. * * * Now that is a collateral matter to this case, and it was improper for him to name, as he did, his co-defendant. * * * What I am doing now is telling you that his response by naming his co-defendants as being with him at that alleged time is not legal evidence. You cannot consider that as any evidence against this defendant on trial that was named, because, it is not legal evidence.

Therefore, under your oaths, which you took to try this case and base your verdict on the legal evidence that you are hearing here in this courtroom, legal evidence, this not being legal evidence, the Court emphatically instructs you you are to wipe out the response of this witness to the defense cross examination of him as to who was with him on a bank job that is not involved in the trial of this case. It is not legal evidence, disregard, wipe out of your mind, in no way allow it to come into the trial of this case insofar as your having heard it. You are to completely disregard it and put no significance at all to the response given where he names who he says was with him, and that’s all he did.

2 . Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Wright, Fed. Frac. & Pro. § 409 (1969).

3 . Fed.R.Evid. 404(b); Lovely v. United States, 169 F.2d 386 (4 Cir. 1948). See also 2 Wright, Fed.Prac. & Pro. § 410 (1969).

4 . None of the exceptions outlined in Fed.R.Evid. 404(b), proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident are relevant to our discussion here. The Government’s argument that the evidence was admissible as showing a common scheme or plan will receive no more mention than to say we consider it to be without merit.

5 . Watkins v. Foster, 570 F.2d 501 (4 Cir. 1978); United States v. Harman, 349 F.2d 316 (4 Cir. 1965); Lovely v. United States, 169 F.2d 386 (4 Cir. 1948).